Posts Categorized: Chuck Grassley

“His comments about [that Supreme Court Justice] were offensive . . . because they were a misleading and unwarranted personal attack on a dedicated public servant.”

Your first guess might be a Democratic senator discussing Damien Schiff—nominated for a position on the U.S. Court of Federal Claims—who called Justice Anthony Kennedy “a judicial prostitute, ‘selling’ his vote as it were to four other Justices in exchange for the high that comes from aggrandizement of power and influence, and the blandishments of the fawning media and legal academy” (emphasis added).

The Senate finally voted on Waverly Crenshaw, Jr.’s nomination to be a district court judge in the Middle District of Tennessee last night after a 432-day wait. Senate Republicans delayed Crenshaw’s confirmation despite his having the recommendation of Tennessee’s two Republican senators and the unanimous support of the Judiciary Committee. He’s just the 17th judge confirmed since Republicans took over the Senate in January 2015, putting the 114th Congress on pace for the lowest number of judicial confirmations in more than 60 years, and way behind the 68 judges that George W. Bush appointed in his last two years.

Judiciary Committee Chairman Chuck Grassley celebrated this rare occasion of the Senate doing its job by dusting off one of Senate Republicans’ favorite misleading talking points—to wit, that there’s no legitimate gripe about confirmations because President Obama has had more total judges confirmed at this point than did Bush. Read more

The Senate confirmed its first appeals court judge of the year last night, unanimously approving Kara Farnandez Stoll for a seat on the U.S. Court of Appeals for the Federal Circuit. Stoll waited more than two months on the Senate floor for a vote, enduring needless delay that has become the norm under Republican leadership. More than six months into 2015, the Senate has confirmed only five judges, and four of them were district court nominees selected and recommended by their own Republican senators. By comparison, during the penultimate year of President George W. Bush’s administration in 2007, Senate Democrats had confirmed 25 judges by July 9.

In floor speeches before the vote yesterday, Senate Democrats hammered Republicans for the confirmation slowdown. Minority Leader Harry Reid said that confirming only one circuit court nominee so far is an “embarrassment,” and accused Senate Republicans of “failing in their basic constitutional responsibility to provide advise and consent” on judges. “The Republican Leader [Mitch McConnell] and his party are on pace to confirm the fewest judicial nominations in half a century,” Reid noted. It’s actually even worse: the Senate hasn’t confirmed 10 or fewer judges since 1953.

In response, Judiciary Committee Chairman Chuck Grassley lamely defended the pace of confirmations in written remarks, asserting that “there shouldn’t be any complaining about following the same standard we did in 2007.” Grassley supported his view with three well-worn talking points that do not survive even the most cursory review. Yet they are worth refuting here, if only because they are commonly given to reporters covering Senate confirmations. It’s time to set the record straight once and for all.

Let’s take each point in turn.

Grassley’s first argument is based on a meaningless comparison of raw confirmation totals. He pointed out that President Obama has had 312 judges confirmed, while at this same point in 2007 President Bush had only 279. “That’s 33 more judicial nominees confirmed” for Obama, Grassley said, “[s]o, this president and his judicial nominees are being treated as fairly, if not more fairly, than the last president.” The problem is that Obama’s higher confirmations are explained by the higher number of judicial vacancies he has had to fill, not by preferential treatment in the Senate. At this point in their respective presidencies, Obama has faced 47 more vacancies than did Bush, which means that, with only 33 more confirmed, Obama’s confirmations are actually falling behind.

Next, Grassley defended his own work as chairman, saying “[w]e’re . . . moving judicial nominees in [the Judiciary] Committee at about the same pace as we did at this point in President Bush’s presidency.” On this point, Grassley’s sleight of hand is to include both executive and judicial nominees in his numbers. But when the focus is on judges, a discrepancy appears: only 13 judicial nominees have had hearings so far this year, while at this point in 2007 Democratic Chairman Patrick Leahy had convened hearings for 17 nominees. And lest anyone think the committee has been overly burdened with executive nominees, recall that Grassley has gone weeks without a confirmation hearing, and in one instance called a hearing with only two judicial nominees on the witness list.

Third, Grassley invoked his own fuzzy math argument, claiming credit for the 11 district court judges that Senate Democrats voted out of committee and confirmed during the lame duck session at the end of last year. He claims that, per Senate tradition, these nominees should have been held for confirmation votes under the new Senate majority. He again pointed to confirmations in 2007: “In 2006, the Senate returned 13 judicial nominees to the President. Those nominees were then re-nominated in 2007, and confirmed in the new Congress. Had Democrats followed standard Senate practice, we would’ve voted on those 11 nominees at the beginning of this year[.]”

But what Grassley refers to as “standard Senate practice” was in fact nothing more than the obstruction of a single Republican senator. At the end of 2006, Republican Senator Sam Brownback blocked a vote on district court nominee Janet Neff because she once attended, as a guest of longtime neighbors, a same-sex civil commitment ceremony. As The New York Times reported at the time, Brownback’s objection, not “Senate practice,” was the only reason nominees were returned to the president: “Judge Neff’s nomination was included in a package of more than a dozen nominees whose confirmation had been agreed upon by both Democrats and Republicans. Mr. Brownback’s objections held up the whole roster of nominees.”

And that’s it. These are the best reasons Republicans can muster to explain why, under their watch, judicial confirmations are headed toward historical lows. It’s obvious that Senate Republicans are intentionally keeping our federal courts understaffed, delaying justice for Americans all across the country, to preserve as many vacancies as possible for what they hope is a future Republican president. Their talking points to the contrary are mere pretext to disguise a purely partisan agenda, and they should be called on it.

Apparently the looming July 4th recess isn’t enough for Chuck Grassley to schedule a long-overdue judicial confirmation hearing. Instead, the Judiciary Committee Chairman appears to be guaranteeing at least three consecutive weeks without a confirmation hearing. Such needless delay, so clearly motivated by a partisan desire to obstruct the president’s judicial nominees, is never acceptable. But there is a more specific reason for concern: two pending nominees—Mary Barzee Flores for the Southern District of Florida, and Julien Neals for the District of New Jersey—have already waited four months for a hearing, and both are nominated to critical “judicial emergencies” in their home states.

Indeed, Florida and New Jersey are two of the states hit especially hard by the great confirmation slowdown of 2015. The Senate has confirmed only four judges this year; as a result, vacancies nationwide have increased from 43 to 59, and judicial emergencies—the official designation for courts that need more judges to handle their current caseload—have more than doubled, from 12 to 27. New Jersey alone has four new vacancies in 2015 (tied with New York for the most in any state) and all of them are judicial emergencies. There are three pending New Jersey nominees waiting for a hearing, including two (Neals and John Vasquez) nominated before April.

In Florida, Flores has been pending since February to fill a judicial emergency that is more than a year old. Florida also got its second judicial emergency this month when a Middle District seat opened up, and a future Northern District vacancy has been announced for December. With the new vacancies this year, Florida and New Jersey have become two of just six states with multiple judicial emergencies. And yet, Sen. Grassley refuses to take one simple step to address this growing problem: quickly process pending nominees through committee so they can be confirmed.

Flores’ nomination also reflects a troubling pattern of obstruction that has emerged under Republican leadership, one in which Republican senators publicly endorse a nominee from their home state, but then do virtually nothing to get them confirmed. We’ve seen this on the Senate floor where nominees recommended and ostensibly supported by powerful Republican senators like President pro tempore Orrin Hatch of Utah, and Majority Whip John Cornyn of Texas, were forced to wait months for what was ultimately a unanimous confirmation vote.

In the Judiciary Committee, this obstruction has taken a very specific form for nominees, like Flores, from states with one Republican and one Democratic senator. What’s happening with Flores now is precisely what happened—and continues to happen—with Third Circuit nominee L. Felipe Restrepo.

President Obama nominated Restrepo last November based on the joint recommendation of Republican Pat Toomey and Democrat Bob Casey of Pennsylvania. Casey then quickly returned his “blue slip” to the Judiciary Committee, signaling that he endorsed the nomination and that Chairman Grassley could move forward with a hearing. But Toomey did not follow suit. While he continued to express public support for Restrepo, he withheld his blue slip for over six months, enabling Grassley to delay Restrepo’s hearing under the pretext of completing a “thorough background investigation.” Toomey and Grassley finally buckled under intense public pressure, and Restrepo had a hearing on June 10. But nothing has happened since, and now Toomey looks unwilling to demand that Grassley and the other committee Republicans vote Restrepo onto the Senate floor.

Similarly, Flores was recommended by Republican Senator Marco Rubio and Democratic Senator Bill Nelson, and Nelson returned his blue slip soon after her nomination. Yet four months later, and despite mounting calls to fill the judicial emergencies in Florida, Rubio has done nothing to ensure that his fellow-Republicans actually move Flores toward confirmation.

With all these hearing delays, Grassley has fallen behind even his own announced pace for processing nominees. Grassley has held himself to “the Leahy standard in 2007,” when Senator Patrick Leahy was the committee chairman, and Democrats controlled the Senate under President George W. Bush. But at this point in 2007, Senator Leahy had convened five confirmation hearings for 17 judicial nominees, while only 13 nominees have had hearings this year. This is in addition to the enormous disparity on confirmations—four this year compared to 21 by the end of June in 2007.

The American people know better than to countenance this sort of form-over-substance support for judicial nominees we’ve seen from Republican leadership and home-state Republican senators. Americans need judges to decide cases and administer justice, not vague assurances that someday—“this year,” maybe—they’ll have enough judges in their district. This week, the people of New Jersey and Florida could have been a step closer to getting the judges they so desperately need, but, instead, their wait for justice is only further delayed.

The Third Circuit Court of Appeals needs another judge.

For the past 675 days, the former seat of Senior Judge Anthony Scirica has sat vacant. The Administrative Office of the U.S. Courts named the seat a judicial emergency earlier this year because the circuit cannot properly manage its current caseload without another active judge.

The problem should be easy to solve. On November 12, 2014, with the support of Pennsylvania Senators Bob Casey and Pat Toomey, President Obama nominated District Court Judge L. Felipe Restrepo to fill the spot. Yet, 176 days later, Senate Judiciary Chairman Chuck Grassley has not even held a hearing on Judge Restrepo’s nomination.

Everyone agrees that Judge Restrepo is qualified for the position. He was confirmed as a federal district court judge just two years ago on a voice vote. The American Bar Association rated him “well qualified.” Senator Toomey, a Republican, said the judge would “make a superb addition to the Third Circuit.”

So why the delay? In a radio interview on Tuesday, Senator Grassley said that Judge Restrepo was going through a “thorough vetting process” and that the committee is “doing what we normally do.”

But this delay is anything but normal. At 176 days, Judge Restrepo has already waited nearly three times

Judge L. Felipe Restrepo

as long for his committee hearing as the average wait for Obama’s other circuit court nominees. Kara Farnandez Stoll, who was nominated to a federal appeals court the same day as Judge Restrepo, had a confirmation hearing on March 11 and was voted out of committee on April 23. This disparity is especially telling because Judge Restrepo just went through a rigorous background investigation before he was confirmed to his district court seat in 2013. If anything, having earned the Senate’s approval less than two years ago, Judge Restrepo’s vetting process should take less time, not more.

And it’s not like Judge Restrepo has been waiting behind a long line of nominees. Stoll is the only circuit court nominee who’s had a hearing in 2015, and on March 11 Grassley convened a hearing with only two nominees on the witness list. Judge Restrepo should have had his hearing then, if not before, but Grassley passed him over.

Justice delayed is justice denied. For the people of Pennsylvania and the rest of the Third Circuit, justice has been denied for far too long. It’s time for Senator Grassley to end his political charade and to hold a hearing for Judge Restrepo. The time for a “thorough vetting process” has come and gone, and there is a judicial vacancy that desperately needs to be filled.

In comments today at the National Press Club, Senator Grassley said of judicial nominations: “Come July of 2016, probably they’ll be cut off and not approving any . . . It’s just kind of tradition.”

But this “tradition” is one of Grassley’s own making. Presidents regularly have district and circuit court nominees confirmed after July 1 of their final year in office. President Clinton had nine in 2000. President George W. Bush had 14 in 2008. And in each case the president faced a Senate controlled by the opposition party.

Sen. Grassley

More importantly, President Clinton’s and Bush’s nominees were treated fairly throughout their final two years in office, when they had 73 and 68 judicial nominees confirmed, respectively. In the first four months of his final two years, President Obama has had two.

Senator Grassley is making it clear he’s committed to obstructing the confirmation process from the beginning to end of this term—and now he wants the end to come sooner than expected.

With a growing chorus calling for Senate Republicans to drop their obstruction of President Obama’s judicial and executive nominees, Judiciary Chairman Chuck Grassley is finding it hard to explain away all the delays.

Yesterday, Grassley was asked about attorney general nominee Loretta Lynch, who has been pending for more than five months, longer than any other attorney general nominee in over 30 years. Straining credulity, Grassley claimed that November and December should not be counted toward Lynch’s overall wait time, because Democrats controlled the Senate back then, and Republicans did not take control until January.

That claim is absurd on its own—White House Press Secretary Josh Earnest called it “an astounding display of duplicity”—but it’s even worse considering what Grassley has said about judges. As we’ve noted before, although the Senate has in fact confirmed only one judge this year, Grassley claims that 11 more judges, reported out of committee and confirmed during the lame duck session last congress, should be counted toward Republican totals for this congress.

A spokeswoman for Senator Charles Grassley, the new chairman of the Senate Judiciary Committee, said that by the senator’s count, Obama already had 11 nominees confirmed in the new Congress because Democrats pushed them through during a “lame duck” session last [year], against tradition.

In other words, Grassley is perfectly happy to take credit for confirmations that happened last year, just not the delay. He can’t have it both ways.

In an interview with Iowa Public Radio, shortly after being named chair of the Senate Judiciary Committee, Senator Chuck Grassley, R-Iowa, said, “I have no reason to believe that the future is any different” for the committee.

He was right. Even with Senator Grassley as chair, Republican obstructionism continues in the Senate Judiciary Committee.

In a previous edition of Benched!, we explained how, when Democrats controlled the Senate, Republicans would routinely and needlessly “hold over” judicial and executive nominees rather than allowing the committee to vote at the first opportunity. This procedural tactic, normally reserved as a courtesy to senators who need more time to examine a candidate’s record, allowed Republicans to take an extra week before sending nominees to the Senate floor.

But now it’s the Republicans, not Democrats, who are setting the committee schedule. And while it might be reasonable in some cases for the minority party to need more time on a nominee, it is plainly a pretext for the majority party to claim it needs more time than it has given itself. Paul Gordon at People for the American Way explained this yesterday, writing that today we would find out “whether Republicans will continue one of the indefensible forms of obstruction that they engaged in for six years while in the minority.”

This morning, we got our answer. Without explanation, Senator Grassley held over the nominations of four federal judges and Attorney General nominee Loretta Lynch.

All four of the judicial nominees are uncontroversial. They would fill district court seats in Utah and Texas, and have the support of their home-state Republican senators on the committee. Lynch has the support of many Republicans on the committee, including Senator Lindsey Graham (R-S.C.), who told reporters “I’m ready to vote.”

For no apparent reason, Texans will now have to wait an extra week until two vacancies deemed “judicial emergencies” by the U.S. Courts—seats that have been empty for over 700 days each—will be filled. The country will have to wait an extra week for a new attorney general, whose confirmation has already taken the longest of any attorney general nominee in the past 30 years.

With the Senate changing hands in January, some in the new Senate majority have indicated that they will continue to confirm President Obama’s judicial nominees, while others have gone so far as to call for a shutdown of confirmations during the final weeks of this session.

Alliance for Justice’s new Benched! series will keep an eye on what senators and other prominent officials say and do (or don’t do, as the case may be) on judicial nominations during President Obama’s remaining two years in office, in order to hold the Senate accountable for its constitutional obligation to advise and consent regarding the president’s nominees to the federal bench.

They “hold over” nominees in committee: Instead of allowing committee votes at the first opportunity, Republicans have “held over” nearly all of President Obama’s judicial nominees, requiring an extra week or more before the nominee can go to the Senate floor.

They filibuster even noncontroversial nominees: To date, Senate Majority Leader Harry Reid, D-Nev., has had to file cloture on 115 of President Obama’s judicial nominations (including every nominee since November 2013)—compared to 22 total cloture filings on President George W. Bush’s judicial nominations.

They require time-consuming roll-call votes: Republicans in 2014 have refused to follow the tradition of confirming judges—particularly noncontroversial district court judges—via unanimous consent or agreed-upon votes, forcing the Senate to go through the tedious roll call vote process, first to invoke cloture and then to confirm.

They forcethe Senate to wait out the full allotment of post-cloture debate time: Senate Republicans have wasted well over 400 hours of floor time that could have been spent enacting legislation to help the American people.

If all this is “accommodating,” we wonder what Senator Grassley thinks obstruction looks like.

For the remainder of the 113th Congress, Senate Republicans should actually be “accommodating” and agree to confirm at least the 15 district court nominees now pending on the floor.